State v. Jones, C--59800

• Decision Date: 18 September 1972
• Docket Number: No. C--59800,C--59800
• Citation: 11 Or.App. 129,500 P.2d 1225,95 Adv.Sh. 999
• Parties: STATE of Oregon, Respondent, v. Jesse Lewis JONES, Appellant.
• Court: Oregon Court of Appeals

Page 1225

500 P.2d 1225

11 Or.App. 129

STATE of Oregon, Respondent, v. Jesse Lewis JONES, Appellant.

No. C--59800.

Court of Appeals of Oregon, Department 1.

Argued and Submitted July 28, 1972.

Decided Sept. 18, 1972.

Ronald J. Loew, Portland, argued the cause for appellant. With him on the brief were Kevin P. O'Connell and O'Connell, Goyak & Haugh, P.C., Portland.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Solicitor Gen., Salem.

Before SCHWAB, C.J., and FORT and THORNTON, JJ.

FORT, Judge.

Defendant and Melvin Luther Cox were jointly indicted for felony murder arising out of a shooting in the course of an armed robbery. Former ORS 163.010. Defendant was tried separately and convicted by a jury. He appeals from the resulting judgment, asserting three assignments of error.

A brief summary of the facts is necessary to an understanding of the principal issue--the failure to give a requested instruction concerning the need for caution in accepting testimonial identification of the defendant.

During the course of a robbery at a tavern committed by two men, Clark Arasmith was shot and killed. More than 20 other persons were present on the premises at the time. Five of them were called as witnesses. Two testified they saw only the gunman who fired the shot, who was concededly not the defendant. Two testified there were two men involved in the robbery but could not say whether defendant was one of them. A fifth witness, one Phillip J. Dietzen, positively identified the defendant as one of the two robbers.

The evidence disclosed that the artificial light in the tavern in the area where the witness was lying on the floor was less well lighted than certain other areas but was 'about average' for a tavern. One witness described it:

'(JOYCE ANN MORGAN) * * * It was not entirely dark. You could see people from one end of the bar to the other end of the bar. If you knew them, you could recognize them.'

Mr. Dietzen testified that the defendant walked over to where he, pursuant to an order of one of the robbers, was lying face down on the floor, and 'touched me with a foot movement to get my attention.' The witness looked up at the robber, who asked him how much money he had. Dietzen told him. The robber did not take it. Immediately thereafter Dietzen again turned his face to the floor and did not again look at the defendant. Mr. Dietzen also testified that he had consumed eight or nine beers during a four and one-half hour period prior to the robbery. He denied being drunk or affected by the drinks. At the trial the witness positively identified the defendant as the robber who had talked with him on that occasion. The evidence was uncontradicted that the other robber shot Arasmith.

The state introduced evidence that earlier on the night of the holdup, Cox, the codefendant, had been present in another tavern next door to the one where the robbery occurred where another witness, Peggy Whitmyer, was employed as a bartender. He remained there for about 45 minutes sitting at the bar having a couple of beers. When she got off work she went next door and was standing at the bar at the time of the robbery. She was forced by Cox after he had shot Arasmith to get behind the bar and open the cash register. She testified that she saw only one person involved in the robbery. She also testified that when Cox was in the other tavern when she was tending bar earlier that evening, Cox was alone, and that she did not see the defendant Jones in that tavern at all.

Prior to the trial Dietzen had identified the defendant from photographs exhibited to him by the police on seven or eight occasions. No claim, however, is made concerning the identification procedures. There was, however, direct evidence showing that the defendant was traveling and at least on two occasions living with Cox, the other robber, using various assumed names.

The defendant requested the following instruction, which the court refused to give:

'You are further instructed that eyewitness identification is not the most trustworthy form of proof of a defendant's guilt since such identification contains many possibilities for error, including outright mistaken identification, the fact that a victim, who was understandably under stress, may have his judgment clouded by emotion, and the fact that the identifying witness may be susceptible of being influenced, intentionally or unintentionally, by suggestion.'

Defendant duly excepted to that refusal.

The dangers inherent in the reliability of the identification of a defendant have been frequently pointed out, both with respect to out-of-court identifications and those occurring during the trial itself. ¹

In 3 Wigmore, Evidence 206, § 786a (Chadbourn rev. 1970), the author states:

'(B) Testimonial evidence may consist either in the witness' answers to questions on the stand (as here,) or in his statements of recognition made prior to trial (§ 1130 Infra). The whole process therefore calls for caution and percaution:

'1. It calls for Caution, in that testimonial assertions to identity must be accepted only after the most careful consideration. On the one hand, the process of recognition being often more or less subconscious, it May be quite correct, even though no specification of marks can be given as reasons for recognition. On the other hand, the risk of injustice being so serious, the great possibilities of lurking error should cause hesitation, and the investigator should seek to establish as many marks as possible that may serve circumstantially to check the testimonial assertions. At this point, there may be a logical value in numbers of witnesses.' (Emphasis in original.)

The author then quotes at length from United States v. Wade, 388 U.S. 218, 228--237, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), where that court expatiates upon the need for caution. ²

In Williams, The Proof of Guilt: A Study of the English Criminal Trial 106 (3d ed. 1963), the author states:

'With all the forms of possible error described in this chapter, it is inevitable that some miscarriages of justice should take place under any system of law, and the best that can be hoped and worked for is that these mishaps should be kept to a minimum. In England and America most of the spectacular miscarriages have been due to wrong identification of the defendant as the culprit. * * * The major source of error was found to be the identification of the accused by the victim of a crime of violence. * * * Experience on the Continent of Europe is precisely similar. To quote Gorphe again: 'Errors of recognition can no longer be counted; a volume would not suffice to contain all those that have been discovered, and that is only a small part of the whole. They pertain above all to the identification of persons."

ORS 17.255(1) directs:

'In charging the jury, the court shall state to them all matters of law which it thinks necessary for their information in giving their verdict * * *.'

The state correctly points out that the statute vests a wide discretion in the trial judge concerning the content of its instructions. Musulin v. Woodtek, Inc., 260 Or. 576, 491 P.2d 1173 (1971); Nordlund v. Lewis & Clark Ry. Co., 141 Or 83, 92, 15 P.2d 980 (1932). This disretion, however, is not an unlimited one.

In Kiddle v. Schnitzer, 167 Or. 316, 327, 114 P.2d 109, 112, 117 P.2d 983 (1941), the court said:

'It is within the sound discretion of the trial judge whether to enlarge upon any particular subject covered by general instructions. There are instances in which refusal to give a specific instruction on the emergency rule would constitute reversible error. In the case before us, although it possibly would not have been erroneous to give an instruction on emergency, nevertheless the failure to give such an instruction, in the light of all the facts in the case, can not be said to be an abuse of discretion. To hold in this instance that the circuit court should have instructed the jury with particular reference to the emergency doctrine would establish a precedent requiring a similar instruction to be given, if requested, in practically every case involving a motor vehicle accident.'

See also, State v. Bouse, 199 Or. 676, 698--699, 264 P.2d 800 (1953), overruled on other grounds State v. Fischer, 232 Or. 558, 565, 376 P.2d 418 (1962), dealing with the rationale and content of a cautionary instruction amplifying the statutory admonition that the oral admissions of a party should be viewed with caution. ORS 17.250(4).

In State v. Jennings, 131 Or. 455, 464--465, 282 P. 560, 563--564 (1929), the Supreme Court considered the matter in relation to a criminal case and said:

'* * * The court has the power to instruct the jury on all questions growing out of the facts of the cause without a request from either party. This seems to be clear from our statute: § 139, O.L. See also 14 R.C.L., Instru...